ORAL ARGUMENT OF MS. KATHLEEN MANAGHAN, ESQ., ON BEHALF OF THE PETITIONER

Chief Justice Warren E. Burger: Ms. Managhan, I think you may proceed whenever you are ready.

Ms Kathleen Managhan: Mr. Chief Justice, and may it please the Court:

This is an appeal from a decision of the Rhode Island Supreme Court.

The issue before you today is whether the exclusionary rule should be applied to exclude the admission of evidence at an administrative hearing, in this case a liquor license revocation hearing, which evidence has already been excluded from use at criminal trial.

The evidence excluded in this case, stolen property, clothing, was found on the premises of the Attic Lounge, a licensed Tiverton, Rhode Island liquor-serving establishment.

On March 11, 1977, the Tiverton police entered the Attic Lounge pursuant to a search warrant which had been obtained by them after receiving a tip from a neighboring police department that they would find stolen property on the property of the Attic Lounge.

They entered the lounge, they found the stolen property.

However, later that warrant was held defective by a Rhode Island Superior Court judge, and therefore the search warrant was quashed.

Unidentified Justice: On what grounds?

Ms Kathleen Managhan: It is my understanding the grounds for the quashing of the warrant were that the police did not knock prior to entering the premises of the Attic Lounge, and also apparently the trial court judge believed that the affidavit which accompanied and caused the warrant to issue did not show probable, sufficient probable cause.

Unidentified Justice: Is this in the record at all, the reasons for the quashing?

Ms Kathleen Managhan: Yes, I believe it is.

Unidentified Justice: It is?

Ms Kathleen Managhan: We do not have a record of the actual criminal proceedings, but they are referred to.

Unidentified Justice: I certainly didn't... I didn't get it from the brief.

Ms Kathleen Managhan: That is correct.

It is, however, in the appendix, Your Honor.

Because of the quashing of the warrant, criminal charges--

Unidentified Justice: Ms. Managhan, under New Jersey law, could the officers have entered the bar without a warrant and made a search under the authority of the liquor control laws regardless of any--

Ms Kathleen Managhan: --Yes, Mrs. Justice O'Connor.

Under Rhode Island law, because this was a licensed liquor-serving establishment, there is a particular Rhode Island statute... I believe it is cited in the appendix to my brief... which allows police officers and other municipal officials at any time to enter the premises of a licensed liquor-serving establishment in order to see whether they are carrying out their operations within the parameters of the law, and for other reasons.

This was in fact acknowledged by the Rhode Island Supreme Court in its decision.

In this case, however, in this case the Tiverton police did in fact seek a warrant.

Obviously their chief thought was in order to obtain stolen property, they did go into the premises of the bar, found the stolen property, but the warrant was quashed.

This, of course, meant that the criminal charges which the State of Rhode Island had initially brought against the manager of the bar and against the bartender, had to be dropped.

However, the Tiverton Town Council, which functions as a local licensing authority for bars within its jurisdiction, had also started procedures, liquor license revocation procedures, against the owner of the Attic Lounge.

They had begun these procedures pursuant to a Rhode Island statute, another Rhode Island statute which I believe appears in the appendix to my petition, which allows a municipality to revoke a liquor license where it can be shown that any state law was violated on the premises of that licensed establishment.

Unidentified Justice: --Was one part owner of the Attic Lounge also a member of the town council?

What was the link?

Ms Kathleen Managhan: No, no, that is not my understanding.

There was no identity between the council members and the bar principals.

March 28, 1977, the town council sitting as license commissioners held a hearing, heard testimony from the local police about their obtaining of the warrant, their searching the premises of the bar, finding the stolen clothing, on the basis of that presentation, revoked the license of the bar.

The bar owners appealed.

Initially they appealed, as it provided by Rhode Island statutory law, to the Liquor License Administrator, Mr. Pastore, who reversed the town council on other grounds, not exclusionary rule grounds.

The town then appealed that decision to the Rhode Island Superior Court which, for the first time, raised the issue of whether the exclusionary rule should have been applied to an administrative hearing, and held that in fact the Liquor License Administrator, for the wrong reasons, but nevertheless, was correct in vacating the revoking of the license.

The town therefore appealed that decision to the Rhode Island Supreme Court.

The Rhode Island Supreme Court affirmed the lower court's holding that evidence of stolen property obtained pursuant to an invalid warrant and suppressed already for criminal purposes, should not have been admissible at a liquor license hearing.

This did this I believe on three bases.

They indicated very clearly in their decision an unwillingness to dilute the deterrent effects of the exclusionary rule on police misconduct by allowing illegally obtained evidence to be admitted at such an administrative hearing.

They also did it by analogizing this administrative hearing, liquor license revocation hearing, to a so-called quasi-criminal hearing.

They called it quasi-criminal in character and therefore said that just as the exclusionary rule is applied to criminal hearings, so should it be applied to quasi-criminal hearings such as this.

And they finally found an insufficient societal interest in the control of liquor-serving establishments to justify a different finding from the one that they had made.

We believe that the Rhode Island Supreme Court should be reversed on each of these grounds: first, on the ground of deterrence.

I believe that this court in Janis has commented on the uncertainty as to whether the exclusionary rule in fact deters police from improper searches and seizures.

It was suggested I believe in that decision that where there has already been criminal exclusion of suppressed evidence, that that is enough, that that is a sufficient sharp medicine, if you will, strong medicine, enacted against a local police, that that is enough to just... enough exclusion in that case.

I would argue that exclusion has already occurred here.

The evidence that was obtained by the Tiverton police has already been excluded from a criminal proceeding.

Therefore, there has been a sufficient penalty enforced against the Tiverton police to justify the deterrent purposes of that rule.

Moreover, this exclusion occurred at a criminal hearing which I would argue that criminal hearing, that criminal charge was the Tiverton police's zone of primary interest.

I would admit that under the standards that were brought forth by this Court in Janis, that this probably qualifies as an intrasovereign situation on its bare facts.

I would, however, argue that despite this being an intrasovereign situation, so to speak, that despite their probable employment status, the chief zone of primary interest for these Tiverton police officers entering the bar on that March evening was a criminal offense and not a licensing offense.

And I believe this is--

Unidentified Justice: Ms. Managhan, also of course we have here the issuance of a warrant by a magistrate, is that correct?

Ms Kathleen Managhan: --That is correct.

Unidentified Justice: And is the magistrate an official of the town, or is that... was that officer someone who was a state officer appointed by the state?

Ms Kathleen Managhan: In the case of Rhode Island, it would have had to have been a judge.

Unidentified Justice: Not selected by the town, but--

Ms Kathleen Managhan: No, oh, no.

Unidentified Justice: --selected by the state, a different--

Ms Kathleen Managhan: No, it would have been a judge who would have issued that warrant.

I would argue that this, that this particular criminal hearing and not the licensing hearing was the zone of primary interest for the police officers involved for various reasons.

They acted on a tip.

They acted on a tip that there was stolen property at the lounge.

Based on that tip they obtained a warrant.

They obtained a warrant that specifically indicated that they were searching for stolen property.

They also, in effect, under Rhode Island law, and under Rhode Island criminal procedures, were basically acting as agents of the state, not the city which employed them, in investigating the possible commission of a felony.

In Rhode Island, it is the State Attorney General's office and not the municipalities that actually prosecute felony offenses.

Therefore, I would argue that the Tiverton police entering the lounge that evening were basically acting as state agents, not as agents of the town which employed them.

They were interested in the possible commission of a felony, not in the possible commission of a licensing offense.

Unidentified Justice: --Is there any evidence in the record from which we would know whether the officers were interested in securing evidence of a criminal offense as opposed to evidence for suspension or revocation of the license?

Ms Kathleen Managhan: No, there is not specific evidence where an officer was actually asked what was your purpose in going to the lounge.

I would say you would have to make that determination, Your Honor, from an empirical examination of how the entrance to the lounge occurred.

Unidentified Justice: Well, what did the warrant affidavit say?

Ms Kathleen Managhan: The warrant affidavit, which I have to admit, Your Honor, I have not seen, but basically consisted--

Unidentified Justice: Well, they must have explained, to get the warrant issued, they had to say what they thought they were going to find.

Ms Kathleen Managhan: --That's correct.

Unidentified Justice: And demonstrate reasonable cause.

Ms Kathleen Managhan: Yes.

The warrant affidavit--

Unidentified Justice: Well, what did it say?

Ms Kathleen Managhan: --The warrant affidavit, as I understand it, reflected the knowledge of a Fall River police officer who had obtained from an informer the information that there was stolen property to be found on the lounge premises.

Unidentified Justice: And I thought you said that they were... that they were seeking to enforce the criminal laws rather than the licensing laws.

Ms Kathleen Managhan: That is correct, and that's the argument I am making, that they received information that was directly oriented towards the violation of a criminal offense, to wit, the harboring of stolen property on the lounge premises.

Now, the fact that they obtained a warrant--

Unidentified Justice: May I ask this question, please?

I don't quite understand with reference to your argument why you rely on that point.

Supposing they were just enforcing the liquor laws, would you say then the exclusionary rule would be applicable?

Ms Kathleen Managhan: --I am relying on the... I am arguing that point because I believe that this Court has indicated some concern in the Janis case particularly about what was the real purpose pursuant to which the officers actually obtained evidence which was later held unlawfully seized.

In other words, did they have in mind... what was their chief purpose?

Did they have in mind--

Unidentified Justice: But I am still not quite clear.

Supposing it had been the other purpose, just to enforce the liquor laws?

Then what is your view on whether the exclusionary rule would apply?

Ms Kathleen Managhan: --Then I think you probably have a situation very similar to what this Court faced in Lopez-Medndoza where it was basically admitted that officials, officers, immigration officers, actually acted with a specific civil proceeding in mind, and in that case, which I don't believe is this case, you might very well have to argue that the exclusionary rule would have to be applied to that civil proceeding unless you had circumstances such as this Court found in Lopez-Mendoza that for other reasons distinguished the proceeding--

Unidentified Justice: Well, let me ask you a simple question, if I can.

Is it your position that the exclusionary rule does not apply to this kind of proceeding provided that the officer had a criminal objective?

Ms Kathleen Managhan: --I think that is one of the reasons.

Unidentified Justice: And that is... but is that... assume he didn't, would you make a different... would you concede it would apply, or you would just say that is just a different case?

Ms Kathleen Managhan: I would say that is a different case.

Unidentified Justice: Well, what is... is the law in your state that people who are enforcing the licensing laws, the liquor laws, may enter a premises to inspect without any warrant at all?

Ms Kathleen Managhan: That is correct.

Unidentified Justice: Well, where did they find these stolen goods?

Ms Kathleen Managhan: They found... I am not sure of that, Your Honor.

I am sure they probably didn't find it right in the center of the bar.

Probably they found those stolen goods in a closet back in the storage area.

I think it is safe to say that they were probably out of sight--

Unidentified Justice: The officers--

Ms Kathleen Managhan: --of bar patrons of the Attic Lounge.

Unidentified Justice: --But the two... but the liquor laws are enforced by the same police who enforce the criminal laws there, aren't they?

Ms Kathleen Managhan: That is correct.

Unidentified Justice: So these same police officers could have entered the lounge any time they wanted to to see if the liquor laws were being--

Ms Kathleen Managhan: That's right, that's right.

Unidentified Justice: --I have a little problem with that.

Don't you have a liquor authority in Massachusetts?

Ms Kathleen Managhan: Rhode Island?

Unidentified Justice: Rhode Island.

I mean Rhode Island.

Ms Kathleen Managhan: Perhaps we don't have one such as is found in other states.

Unidentified Justice: Well, don't you have one that gives the liquor authority officers the right to go in the bars and grills?

Ms Kathleen Managhan: That responsibility is primarily borne in Rhode Island by local police officials.

Unidentified Justice: And they don't have any state liquor authority people?

Ms Kathleen Managhan: They function primarily on an administrative basis, Your Honor, to hear appeals such as was taken from the Town of Tiverton.

Most--

Unidentified Justice: Well, who checks as to whether they are serving watered whiskey or not?

Yes, it can be, or by municipal officials that are specifically designated to have that responsibility.

In Rhode Island these kinds of liquor license offenses are handled initially on the municipal level, and if you will read the statutory authority that I have cited in my appendix to my petition and also my appendix to my brief, it becomes very clear.

Unidentified Justice: But the state board, the state board revokes the license, not the local city.

Ms Kathleen Managhan: No, it is the local town council.

Unidentified Justice: That revokes the license.

Ms Kathleen Managhan: Yes.

The local town council awards the licenses--

Unidentified Justice: And revokes them.

Ms Kathleen Managhan: --And suspends them, and revokes them, yes.

They basically put on another, another hat, if you will, and sit as a local liquor licensing or revoking authority, and they do have as--

Unidentified Justice: But then it has to go to the state Liquor Control Administrator for review.

Ms Kathleen Managhan: --That is correct.

That is correct.

Well, if it is appealed.

Unidentified Justice: Yes.

Ms Kathleen Managhan: If it is appealed.

There is no automatic transfer.

It is not automatically reviewed.

Unidentified Justice: It is the state Liquor Control Administrator who is your opponent in these proceedings.

Ms Kathleen Managhan: That is correct.

That is correct.

Unidentified Justice: No brief being filed by owners of the Attic Lounge.

Ms Kathleen Managhan: That is correct.

Unidentified Justice: The board, the town commission minutes in the appendix do reflect that a one-third owner of shares in the Attic Lounge was apparently one of the town commissioners voting on the matter.

Ms Kathleen Managhan: I stand corrected.

Unidentified Justice: I don't know that it is any... has any great relevance, but I thought it was curious.

Ms Kathleen Managhan: I stand corrected, Your Honor.

It was not a point that was ever dwelled upon by the lower court.

That is entirely possible.

Tiverton is a small town.

You have... several of you have brought up the existence of this particular Rhode Island statute which enables local police officers, where they are interested in learning of licensing offenses, to actually enter the premises of a bar in order to determine whether those licensing offenses have in fact occurred.

I bring that to your attention to indicate what to me seems to be a very clear indication that for the Tiverton police officers entering the Attic Lounge, license... licensing offenses were not what were on their mind.

If they were interested in determining licensing offenses, or if that was further down the line for them, they would in fact have not even bothered to have obtained a warrant.

They would have simply entered the bar, and they could have checked around to see if there were any licensing offenses, and the statute does not provide any limitation to where they may look, so presumably they could have looked over the entire premises, and as the Rhode Island Supreme Court itself admits, if in fact being on the premises pursuant to that statute they had seen property which they knew from other information to have been stolen, they could have acted appropriately.

They didn't do this.

They got a warrant.

And I think what this indicates, it indicates two things.

It first of all supports my argument which I am once again basing upon this Court's concern in Janis, with primary zone of interest, that this... these police officers' primary zone of interest was felony investigation and not license investigation.

If it had been license investigation, why would they have bothered to have gone to the trouble of getting the warrant?

In fact, they did.

I think this very clearly indicates that it was the felony investigation that was chiefly on their minds.

It brings up another issue, however, the existence of this statute, as to what deterrent effect there would be if in this case the evidence that was obtained by the unlawful warrant was in fact excluded.

Where you have a statute such as this, there really is very little deterrence effect at all.

All it will really do is discourage Rhode Island police officers henceforth from ever obtaining a warrant where there is any other basis pursuant to which they can go on licensed premises in order to take a look around.

In this case it certainly is not going to encourage police officers to obtain a warrant.

It will have exactly the opposite effect.

They will not want to take a chance that the warrant will be quashed, that the evidence will be considered excluded for any purposes, and they will therefore simply enter the bar under the statutory basis and will... and see what they can see.

And presumably, if they see something that indicates a felony violation, they could present it to the Attorney General's office for prosecution of that felony violation, and there would be no constitutional issue because they were appropriately on the premises pursuant to the statute.

So I think if in fact this Court were to determine that the excluded evidence could not be used at the liquor license revocation hearing because of the quashed warrant, this would have, if anything, the opposite of a deterrent effect on police officers because it would discourage them from using the more protective constitutional means of obtaining a warrant.

Instead they would always proceed under the statute.

The Rhode Island Supreme Court also indicated its belief that this liquor license revocation hearing was in fact a quasi criminal hearing, although we attempted to--

Unidentified Justice: May I go back to your last argument for just a second?

Ms Kathleen Managhan: --Yes.

Unidentified Justice: I was trying to think it through.

I understand you want to win this case, of course, but apart from this case, it really doesn't make much difference to you, as I understand your argument, because you can always get the information by following the other, the nonwarrant procedure.

Ms Kathleen Managhan: That is correct.

Unidentified Justice: So this is really kind of a one shot situation.

Ms Kathleen Managhan: That is correct.

That is correct.

The Rhode Island Supreme Court called this particular procedure a quasi-criminal proceeding because the object of the proceeding, the liquor license revocation proceeding, was to penalize for a legal offense.

This Court I believe in Lopez-Mendoza designated a very similar, similar proceeding as a civil proceeding, and I believe there are great analogies between the deportation hearings and the liquor license revocation hearing that is before you.

For instance, in this case, the Tiverton Town Council was reviewing admittedly bad past behavior of the bar in order to determine whether it should continue to be entitled to hold a liquor license issued by the town.

Similarly, in Lopez-Mendoza, this Court was faced with the factual circumstances of whether an alien should be allowed to continue to remain in this country because of how he had happened to enter this country, whether he had come in properly or not.

In both of these cases an administrative tribunal was reviewing behavior which could be the subject of separate criminal action, but the review was not in fact criminal in type.

Also, another similarity between what is before you and Lopez-Mendoza, it was the informality of the proceeding.

The Tiverton Town Council was the tribunal which was hearing evidence, excluded evidence, in order to determine whether there should be a license revocation.

Certainly some rules of evidence probably pertain, but you are basically dealing with a lay, a lay board making a determination as to revocation or nonrevocation.

Another point which should be mentioned is that tribunals such as Tiverton in Rhode Island do not need to be shown that a conviction was obtained for this offense against Rhode Island laws in order for them to revoke a license.

In other words, they can be presented with evidence that in fact Rhode Island laws were violated on the premises of a bar.

But they don't actually have to be shown evidence that a conviction was obtained.

Unidentified Justice: Your liquor Control Administrator, I take it, thought otherwise until the Superior Court straightened him out.

Ms Kathleen Managhan: That is correct, and he was told that that in fact was not the case, that a conviction is not necessary.

To me this indicates an indication that there is a lesser standard of evidentiary concern in order to determine whether a licensed liquor establishment ought to have their license revoked.

It is true that a board such as the Town of Tiverton, in making this kind of determination, may in fact penalize.

However, I would argue that an immigration court also penalizes in the deportation hearing if they in fact decide that an alien's behavior justifies their being deported.

I do not think that this penal, possible penal aspect of a civil hearing such as before you is something that should be, as it was with the Rhode Island Supreme Court, a center for a decision as to whether the exclusionary rule should be applied to such a tribunal.

In fact, the Rhode Island Supreme Court admits excluded evidence in certain kinds of criminal hearings, as do a number of courts.

The Rhode Island Supreme Court in its decision referred to probation revocation hearings and bail revocation hearings as criminal proceedings where, although a penalty might be the ultimate result, that in fact the exclusionary rule would not apply to these subsequent but nevertheless criminal proceedings.

Many civil administrative hearings have penal elements.

This type of hearing may in fact be held to have some kind of penal element to it.

However, I believe that this Court has made very clear in Janis and in Lopez-Mendoza that the label on a hearing is not nearly as important as the effect of applying the exclusionary rule to that hearing will have on law enforcement practices in the area and on the... and what the social impact will be of such an application.

I would pass to what that social impact would be.

I believe you have before you in the regulation of the sale of liquor an excellent example of a traditional and appropriate area of great governmental concern.

And I think that the statutes that we have discussed in Rhode Island show that there is a clearly public policy for close control of licensed liquor-serving establishments.

In fact, a license to serve liquor is a privilege which is granted by a governmental authority in Rhode Island, by a municipal authority, contingent, and is held contingent upon the proper operation of those premises.

The public need for that control is clearly shown by the statutes that we have discussed, for instance, the ability to enter upon the premises at any time without a warrant simply to determine appropriate operation, upon the fact that a license may be revoked for any proof of the fact that a state law or other municipal law has been broken on those premises, even if there has been no conviction for the same.

Unidentified Justice: Counsel, I take it that most of the cases on this point around the country are against you, are they, or not?

Ms Kathleen Managhan: I would disagree.

Unidentified Justice: I don't see much discussion of those cases in your brief.

Ms Kathleen Managhan: I did discuss two cases, one from Illinois and one from Ohio, both of which basically indicated that where liquor license revocation was the concern, that in fact the exclusionary rule would not apply.

Unidentified Justice: There are other cases to the contrary, I take it.

Ms Kathleen Managhan: There are other cases to the contrary.

There are the cases that the Rhode Island Supreme Court relied on in its decision.

The Finn's case is probably the most well known example in New York, and I believe there are other decisions in Pennsylvania.

Those cases particularly deal with the issue of liquor license revocation.

I think if you look at the larger issue of whether the exclusionary rule ought to be applied to civil hearings in general, you will find a very mixed treatment of this particular issue, and I believe I gave as an example the treatment that the State of California has given to the application of the exclusionary rule to civil hearings.

One of their best cases was... best known cases was the Emslie case in which they basically at the beginning of the case discussed what for them is a very tight adherence to the exclusionary rule even in some other so-called civil proceedings, and then proceed to not apply it in a proceeding which dealt with disbarment of an attorney.

So while I would admit that there are in fact some very strong cases against me on the limited issue of the application of the exclusionary rule to liquor license revocation proceedings, I think if you take the larger look at civil application of the exclusionary rule to a variety of such hearings, you will find that in fact it seems as though the jurisdictions and also the federal courts are pretty evenly split.

Unidentified Justice: Ms. Managhan, may I ask one factual question?

I think Justice O'Connor pointed out that the Attic Lounge, Inc. is a named respondent, it has not filed any papers in the case.

Ms Kathleen Managhan: That is correct.

Unidentified Justice: Is it still in business?

Is the lounge still in--

Ms Kathleen Managhan: It is not still in business.

Unidentified Justice: --Oh, it is out of business?

Ms Kathleen Managhan: That is correct.

Unidentified Justice: Do we have a live case in front of us then?

Ms Kathleen Managhan: Yes, I think you do.

Unidentified Justice: Who is interested in winning or losing then?

Ms Kathleen Managhan: Well, I think that the town is interested, and also the liquor license... the Liquor License Administrator is also interested.

Unidentified Justice: They would like to know what the law is.

Ms Kathleen Managhan: That is correct.

Unidentified Justice: I mean, will the outcome of the case actually decide whether anybody sells any liquor or not?

Ms Kathleen Managhan: That is... it will not because the Attic Lounge has in fact gone out of business.

So I think the interests that you have before you are there interests of the town and also of the state agency in determining what the proper law should be.

Unidentified Justice: In just knowing what the law is.

Ms Kathleen Managhan: That is correct.

If I could simply summarize, I believe that I have mentioned some societal interests in close... in the close control of licensed liquor premises which are very much part of this case.

I think you have a situation here where improperly obtained evidence has already been excluded, and therefore the local police whose behavior is of central concern to this court, have already been penalized.

I believe I have attempted to argue that despite the fact that the Tiverton police were employed by the town, that it was their chief interest, criminal investigation--

ORAL ARGUMENT OF JOHN H. HINES, JR., ESQ., ON BEHALF OF THE RESPONDENT

John H. Hines Jr: Mr. Chief Justice and members of the Court, I would like to begin by amplifying somewhat the nature of liquor matters in the State of Rhode Island.

Unidentified Justice: Could I ask you at the outset--

John H. Hines Jr: Yes, Your Honor.

Unidentified Justice: --The issue in the Court below was whether or not the Administrator was correct in setting aside the license revocation.

John H. Hines Jr: Yes, that's right.

Unidentified Justice: And the Administrator's decision was affirmed.

John H. Hines Jr: That is correct.

Unidentified Justice: And so it really is a license case, a licensing case, and I wonder what your answer is to Justice Stevens' question, why isn't this case moot?

John H. Hines Jr: It is not moot, Your Honor, for the reason that the Attic Lounge did go out of business, but they did not go out of business immediately, and at the time that this was in the works, it would have an effect on them.

Other than that--

Unidentified Justice: What happens to a liquor license that a tavern owns when it closes?

Can they sell it, transfer it?

John H. Hines Jr: --Yes.

They cannot sell it per se, Your Honor.

They can make an application, they can make an arrangement to sell it subject to the sale being approved by the town.

The town has the--

Unidentified Justice: Of course, if they... if it had been properly revoked, they couldn't sell it or transfer it.

John H. Hines Jr: --No, that is correct, Your Honor, they could not.

Unidentified Justice: But is there... did somebody want to succeed these owners in that same place and sell liquor under that license?

John H. Hines Jr: I am not aware of that, but I would doubt if that were the case, Your Honor, if someone wanted to succeed to that license.

What happened, if it were revoked, it would then--

Unidentified Justice: Well, I know, but let's assume the... I'm still asking whether there is a live controversy here.

Is it possible that this license is... if we affirmed here, is it possible that that license would still be in existence?

John H. Hines Jr: --The license is probably still in existence, but not with the former owners of the Attic Lounge.

Unidentified Justice: Well, it might be attached to that place, though.

John H. Hines Jr: No, Your Honor.

Unidentified Justice: It isn't.

John H. Hines Jr: The license does not attach to anyplace.

The municipality has a certain number of licenses for their community, and--

Unidentified Justice: Well, what would happen to the license if we reversed?

John H. Hines Jr: --Nothing whatsoever.

Unidentified Justice: Well, why wouldn't it?

What if we said that the court below was wrong in excluding the evidence?

John H. Hines Jr: I have no... I have no doubt, although I am not certain, that since this time the license has been transferred to another entity, totally separate from the Attic Lounge, and they are probably functioning under it right now.

It will have no effect whatsoever on the licensing.

Unidentified Justice: Well, your client... and your client is the Commissioner, is that right?

John H. Hines Jr: That is correct, Your Honor, yes, sir.

Unidentified Justice: Well, suppose we reversed and said the evidence was properly admissible?

What would your client do?

John H. Hines Jr: In future hearings?

Unidentified Justice: No, no, in this case.

John H. Hines Jr: It would take no action whatsoever.

Unidentified Justice: Well--

John H. Hines Jr: If anyone were to take action, it would be the local community.

In the first instance, they have the original jurisdiction.

The only--

Unidentified Justice: --Well, I know, but they revoked the license.

John H. Hines Jr: --That is correct.

Unidentified Justice: And you said... and you reinstated it.

John H. Hines Jr: Yes, Your Honor, we did.

And we were--

Unidentified Justice: On an erroneous basis.

John H. Hines Jr: --That is correct.

Unidentified Justice: And now you are defending the state court's decision.

John H. Hines Jr: Yes, Your Honor.

Unidentified Justice: Not much of a case here, is there?

John H. Hines Jr: From a scholarly point of view, perhaps, but from a practical point of view, your questions point out that the ultimate effect does not have a practical result.

Unidentified Justice: But this wasn't point out in your brief anywhere, and we have no brief from the Attic Lounge.

So these facts that we are discussing are simply not apparent from the record.

John H. Hines Jr: No, they were not pointed out.

No, they are not apparent, and also, Your Honor, some of them are my assumption.

I am not familiar with what is occurring in Tiverton.

I am with regard to the Liquor Control Administrator and his concern on how this will go in the future.

But the Court can be made aware that if this does become moot, that the Rhode Island case will stand and the exclusionary rule will be applicable.

Unidentified Justice: Well, if it is moot, we simply wouldn't decide it at all, would we?

John H. Hines Jr: No, you would not.

Unidentified Justice: That's why it becomes important to us to know.

Except also isn't it true your opponent said that the precedent really doesn't make any difference except in this case because they can always get the information without using a warrant by following the statutory procedure.

John H. Hines Jr: That is correct also, Your Honor.

Unidentified Justice: So really even theoretically there is not a great deal at stake.

John H. Hines Jr: No.

Unidentified Justice: Because we are really asked to decide this case only, and this case itself is moot.

John H. Hines Jr: That is correct.

Unidentified Justice: Except that officers to enforce the liquor laws cannot enter without a license and go to locked doors.

John H. Hines Jr: No.

The statute is in the appendix, and it is very broad, Your Honor, and it permits a whole host of people, the mayor, the council, may at any time enter upon the premises of a licensed premises to ascertain the manner in which the person conducts his business and to preserve order.

Unidentified Justice: Do you think they could go and search bureau drawers?

John H. Hines Jr: Under, if they went in under the statute--

Unidentified Justice: Desk drawers.

John H. Hines Jr: --Yes, they could.

I don't think it would be right, but under this statute, it is very broad.

It says they shall have the power to arrest without a warrant all persons found inside in the commission of any offense in violation of the provisions of this title, the liquor title.

It is very broad, Your Honor.

Unidentified Justice: Suppose they wanted to go in and hunt for some drugs, and they went in, and if they... in the back end of the tavern was a living quarters?

Do you think they could go in the living quarters?

John H. Hines Jr: I don't believe so, Your Honor, no.

Unidentified Justice: Well, do you think they could look in a jar, look in a--

John H. Hines Jr: I don't believe the living quarters are premises.

The liquor... it would be the four corners of the establishment with respect to serving of liquor.

Unidentified Justice: --Do you think they could open the cash register?

John H. Hines Jr: No, I don't believe they can.

I believe I am saying to you this statute, if you read it literally, is so liberal that it would permit that.

I don't agree that it would be proper or right, Your Honor.

Unidentified Justice: Mr. Hines, may I get back a minute?

However we decide this case, whether we affirm or reverse, nothing happens to this license.

John H. Hines Jr: No, Your Honor.

Unidentified Justice: Does it still continue in existence?

John H. Hines Jr: Yes, it does.

Unidentified Justice: No matter what we decide.

John H. Hines Jr: That is correct.

Unidentified Justice: Well, what can we do other than give an advisory opinion?

John H. Hines Jr: Your Honor, there is some, as my adversary has pointed out, there is some diversion in the lower courts as to whether or not the exclusionary rule does apply in this type of proceeding.

It would be some clarification.

My own personal feeling, I wouldn't have a problem with that.

I believe that in that event, the Rhode Island Supreme Court case would stand, and the Plymouth Sedan case would still stand and be law, and those are the cases basically that I am relying upon for my position.

So I don't have a problem with that.

Unidentified Justice: Well, wouldn't it be an advisory opinion?

John H. Hines Jr: Yes, it would be, Your Honor.

Unidentified Justice: Well, I would have thought, though, that... I would have thought that if your client determined in his own mind that he had erroneously reinstated the license, that the could consider this evidence, and that there was evidence--

John H. Hines Jr: No, he--

Unidentified Justice: --I would think he could go back and say this license should have been revoked, and I am now going to revoke it.

John H. Hines Jr: --He would do that, but he would be faced with the same situation you are faced with.

At that point it is a moot question for him.

Unidentified Justice: Well, I don't know--

John H. Hines Jr: The license--

Unidentified Justice: --Anybody who took, the transferree of his license took it at his risk and his peril.

John H. Hines Jr: --No, not under the Rhode Island law, Your Honor.

Unidentified Justice: I see.

John H. Hines Jr: It is a clean, clean slate.

Unidentified Justice: It is like issuing a new license?

John H. Hines Jr: Yes, it... exactly, Your Honor.

Unidentified Justice: Would it have an effect in the future on the ability of the owners of the Attic Lounge to get... to hold a liquor license in the future?

John H. Hines Jr: Yes, it would, Your Honor.

Unidentified Justice: So it would have that effect.

John H. Hines Jr: Yes, it would.

They cannot--

Unidentified Justice: And why wouldn't the liquor Control Administrator of the state be interested then in going back and taking action so that he would know the status of these people in the future if they were to come back into business.

John H. Hines Jr: --I haven't made myself clear.

He would definitely be interested.

He doesn't have the jurisdictional authority in the sense that that type of thing would again have to go originally to the local board for them to determine that.

Unidentified Justice: So it would be up to the Town of Tiverton--

John H. Hines Jr: That is correct, yes, Your Honor, and that... it is because of the jurisdictional aspects.

Unidentified Justice: --Well, the town has already acted.

It was the officer whom you are representing who disagreed with the town.

John H. Hines Jr: Yes, that's correct, Your Honor.

Unidentified Justice: The town has already acted.

John H. Hines Jr: Yes, they have.

Unidentified Justice: So your administrator would not consider changing his aim on the basis of the evidence on the appeal?

John H. Hines Jr: He would consider it if it was properly before him, but it wouldn't come before him until, first of all, the town would have to take the initial original action.

That's the way the law is structured in Rhode Island.

The administrator, then he is met as an appeal.

Unidentified Justice: Well, I thought the town did take it and that your administrator heard it on appeal.

John H. Hines Jr: Yes, we did, de novo.

Unidentified Justice: Yes.

Well, why wouldn't it go back to your administrator?

I don't understand, in view of the fact that the town acted.

Because the license has been transferred?

John H. Hines Jr: Yes.

Unidentified Justice: And that that is like issuing a new license to a new person.

John H. Hines Jr: That's correct.

Unidentified Justice: But let's suppose that this Court did reverse the judgment of the Supreme Court of Rhode Island.

Our mandate would then go back to the Supreme Court of Rhode Island, which was considering in this case on a petition for certiorari from the superior court.

Now, wouldn't the Supreme Court of Rhode Island send that case back to the Superior Court, and the Superior Court send it back to you?

John H. Hines Jr: Yes.

Unidentified Justice: So that it isn't up to someone else to start a new proceeding.

This proceeding would go back to you.

John H. Hines Jr: And then we would send it back to Tiverton, Your Honor.

Unidentified Justice: And so it depends on what Tiverton wanted to do--

John H. Hines Jr: That is correct.

Unidentified Justice: --what would happen?

John H. Hines Jr: Yes.

And the reason for that is that the scheme of, statutory scheme of liquor control is to let the original jurisdiction handle things in the first instance on their own.

Unidentified Justice: Well, what if Tiverton says we already revoked, and your decision setting aside our revocation has now been overturned by the higher courts?

John H. Hines Jr: An interested party who might be affected by that, and I don't think one exists because they are not holding the license, could then appeal to the Liquor Control Administrator.

Unidentified Justice: May I ask if your state supreme court has authority to render advisory opinions?

In some states they do.

John H. Hines Jr: Yes, they do, Your Honor.

Unidentified Justice: And so perhaps they were well aware of this whole situation and just rendered an advisory opinion.

John H. Hines Jr: No, can I say that at the level of the Supreme Court, the Attic Lounge people were represented by their own counsel.

Unidentified Justice: Oh, they were at that, then.

John H. Hines Jr: Yes, Your Honor, and the... I was not involved in that.

It was the Town of Tiverton and the counsel for the licensees at that point in time.

Unidentified Justice: Of course, you take the position that they were right in their view on the law.

John H. Hines Jr: Yes, Your Honor.

Unidentified Justice: But so that if we sent it back, the Rhode Island Supreme Court would have the power to say, well, that is all well and good, but our advisory opinion is the following anyway.

They could still just give this as an advisory opinion, even if there is no more life at this point.

John H. Hines Jr: Yes, Your Honor, they could.

Unidentified Justice: Well, they have... I was going to say, they have already decided this case the way you want it decided.

John H. Hines Jr: That is correct, Your Honor.

Unidentified Justice: I would think you, with your first point out of the box here would be to say that the case is moot, you should just dismiss it.

That leaves the law in Rhode Island exactly the way you want it.

John H. Hines Jr: I would not be displeased with that disposition whatsoever, Your Honor.

Unidentified Justice: Unless we held it was moot and vacated the judgment below.

John H. Hines Jr: Yes, sir.

That is a different problem.

Unidentified Justice: Do you think we have the authority to vacate advisory opinions of state Supreme Courts?

John H. Hines Jr: No, Your Honor, I do not.

Basically the position that I have taken is twofold, Your Honors.

The first is whether or not the exclusionary rule applies.

And I have taken the position that it does, and I am in agreement with the Rhode Island Supreme Court based upon the Plymouth Sedan case, that the nature of a license revocation is quasi-criminal in nature in that it is intended to penalize the licensee for a past transgression or commission of unlawful conduct.

Unidentified Justice: Well, wouldn't that mean that virtually all license revocations would fall under that category?

John H. Hines Jr: Yes, it would, Your Honor, and it would I think for this reason.

Things in the law for the most part remain static, but they do change, and one of the things that has changed with a license, an alcoholic beverage license, at one time it was a naked privilege.

Rhode Island Supreme Court has now recognized that it has the nature of a property right, and it really have value in the sense that without it someone in that business of a restaurant or lounge is not going to make any money, so that it is seriously a penalty for someone to have a lounge business or restaurant business and not to have accompanying it an alcoholic beverage license in today's world.

As a result, to lose it, to have it revoked is indeed a penalty, and as Justice O'Connor pointed out, the Rhode Island statutes provide that if a revocation occurs under the statute which Tiverton acted under, the licensee is prohibited also from having an alcoholic beverage license in that state for a period of five years time.

I believe that that is penal in nature, taking into account the loss of a valuable item of property and the fact that for five years you are prohibited from being in that particular business.

And I think, the most prominent discussion of what is quasi-criminal was in the recent case of Lopez-Mendoza, where it was acknowledged the case, although purely civil in nature, there was some discussion about what constitutes a quasi-criminal situation.

And I believe that this case falls right into that category, and it is analogous to the situation of forfeiture in the Plymouth Sedan case where a property right is forfeited, action of forfeiture is taken against it, a revocation is forfeiture, and it has a quasi-criminal nature.

This was also pointed out by the Rhode Island Supreme Court, that they can go against an individual in this kind of case under two different avenues, but they are basically co-extensive is the word I believe they used.

Unidentified Justice: Well, Mr. Hines, do you suppose that one Plymouth Sedan quasi-criminal analysis survives the balancing test now employed by the Court not only in Janis, but in cases like Leon and Shephard, which themselves were actually criminal cases.

Do you think that this Court is now content to just say, well, it's quasi-criminal, so we apply the exclusionary rule automatically without considering any of the factors that would justify the application of such a rule.

John H. Hines Jr: My answer is yes, for this reason.

I think there are two questions that need to be asked in this case.

One is does it apply?

And I believe it does.

If you have gone so far in Lopez-Mendoza, which is purely civil, as indicated, and applied the rule, then it applies in this case.

Then you go to the balancing test, and in Lopez-Mendoza, I am in basic agreement with the end result of the balancing test.

I believe, though, that applying the balancing test in this case, we don't come out with the same result as Lopez-Mendoza.

So I think there are two separate questions: application of the rule itself, and if it does apply, then you enter into the balancing situation.

But I--

Unidentified Justice: But that might put the cart before the horse, mightn't it?

Don't you balance to see if it applies?

John H. Hines Jr: --I don't believe so.

I believe that with One Plymouth Sedan, and going back to Boyd, and One Plymouth Sedan, and even Janis, in this situation of an intrasovereign situation, that it does apply, and especially after you have already said in Lopez-Mendoza, which is purely civil, that it does.

I don't even know that I need to say that this is necessarily quasi-criminal.

But I am, because I am relying upon the Plymouth Sedan.

I think it is not putting the cart before the horse.

I think that the way these decisions in this Court have come down, it is a necessary process to first determine does it apply.

Now, you may determine it doesn't apply for the reason that this is a civil situation and not a criminal situation, but I think we must get to the balancing process as well.

Unidentified Justice: May I ask another question about the procedure in the case that kind of puzzles me?

John H. Hines Jr: Yes, Your Honor.

Unidentified Justice: Apart from this one case... and I understand that your client sustained or revoked the... or reinstated the license, in effect, here--

John H. Hines Jr: Yes, Your Honor.

Unidentified Justice: --that apart from this case, that your client's general duties are supervising the administration of liquor laws in a certain capacity.

Why wouldn't it be in your client's best interest not to have the exclusionary rule apply?

Wouldn't your client generally be able to perform his function better if he had more evidence available to him?

John H. Hines Jr: Yes, but I don't think that that is a standard that should be applicable whether or not you can function better, not with the Fourth Amendment.

I don't think that--

Unidentified Justice: But from the point of view of his actual, his interest in performing his job would be better served if you lost the lawsuit.

John H. Hines Jr: --Absolutely.

As a point of interest, perhaps only interest, I was not involved in the Superior Court level of this or the Supreme Court in Rhode Island State.

The case, when certiorari was granted, or the petition was requested, went to the Rhode Island Attorney General's department.

As I understand it, they weren't pleased with necessarily the Rhode Island Supreme Court decision and didn't want to take the time to act to sustain it.

That's when I got the call.

And I am here as a result of that.

Unidentified Justice: Well, you could have passed error.

John H. Hines Jr: But I don't... getting back to what you are asking, I don't think that is the standard, but it certainly would help us, it would help the Attorney General in the State of Rhode Island, but I don't believe that that is necessarily how you make a decision.

Unidentified Justice: You mean as long as you have that broad statutory authority to search without a warrant.

John H. Hines Jr: Which I have... yes, that's correct, Your Honor.

Unidentified Justice: Well, since we are on the subject, why on earth are you trying to sustain this decision?

I would think from the point of view of the Liquor Administrator, he would want his powers to be as unfettered as possible.

John H. Hines Jr: In a vacuum he would like that, Your Honor, but he has counsel that... and if I were faced, and I am his counsel, with this kind of a situation, I would have gone the same way as the Rhode Island Supreme Court.

Unidentified Justice: Well, but since you are not a court but really advising the Liquor Administrator, why don't you try to get the best ruling you can from the highest court in the land?

John H. Hines Jr: I would like to have that.

Unidentified Justice: And what would that consist of?

John H. Hines Jr: As I have indicated in my brief, to affirm the Rhode Island Supreme Court decision.

Again, it is not function.

You know, you are saying that the form should follow what your function is.

That's not... we don't function in that kind of a situation.

Unidentified Justice: Well, I'd always thought, having spent three years in the Justice Department, that the job of any government lawyer was to see that there were the fewest conceivable restraints on government conduct, that if there were restraints on government conduct, it should come from governmental decision, not judicial decision.

John H. Hines Jr: That is not the position of the Liquor Control Administrator, Your Honor, and has not been.

Unidentified Justice: I guess I would have made a poor Rhode Island Liquor Control Administrator.

0 [Generallaughter.]

John H. Hines Jr: I'm not so sure about that, Your Honor.

Well, I would like now to get then to the balancing test, and I did want to point out that because of the quasi-criminal nature of the case, that I do believe that the rule applies.

But the balancing test, as I pointed out to Justice O'Connor... I am not sure she agrees with me necessarily, but is the next application that we must undertake to determine if the costs and the benefits warrant its application.

I have pointed out and I have made particularly contrast to Lopez-Mendoza which I think went to great lengths at presenting and weighing the various factors that go into a situation of cost and benefit, and as far as the benefit is concerned, the significant benefit I have is we are faced with a situation that is opposite of Janis that we have an intrasovereign situation.

The same police officer that went upon the premises with the warrant is the same police officer that would testify, and probably did testify, with respect to the liquor control situation.

They both, the officer is interested in both situations, and I maintain that under the case law, that it is sufficiently derivative, the two actions of criminal in the courts and of the administrative hearing before the liquor board, that the rule should apply.

And I believe that this was determined to some degree in Janis.

I would also like to point out that in deterrence, one of the things that I have experienced in doing the research on this was that deterrence generally is used in a singular sense as against the offending officer, as it were.

On the other hand, when we are looking at the costs, we look at them in a pluralistic view as to the cost to society, and I would like to maintain and submit to the Court that I am in agreement with Mr. Justice Brennan when he stated in Leon that the deterrence should be pluralistic in the sense that what we are seeking in deterrence is institutional compliance, and I think that sometimes in making the weighing, balancing situation, the scales are somewhat thrown out of function when we don't stop to look at the institutional compliance that we are looking for, and we focus rather on the singular activity of an officer.

And so that in determining the situation of cost, I don't believe that, as was argued by my opponent, that we can simply look at the sphere of influence of the officer himself.

I think we have to look beyond that in a pluralistic sense, and I think that would counteract the pluralistic viewpoint we take when we determine what it will cost to implement the rule.

Isn't it in the interest of the state, which under the 21st Amendment is given broad powers for the control of liquor, to facilitate everything possible to keep the industry clean and upright?

John H. Hines Jr: The answer to that question is yes, Your Honor.

Unidentified Justice: And isn't that a lot easier if you can march into a liquor establishment without a warrant and see if they are complying with the law?

John H. Hines Jr: That is correct, and there is such a statute.

The only difficulty with that statute, Your Honor, as I read it to you, its focus is basically upon compliance with liquor matters and not with other aspects of the law.

But we do have that broad statute.

Now, I wanted to in my conclusion, Your Honor, make reference to the fact that presently the exclusionary rule is considered a judicially created remedial device, and it is restricted to use where its objections... objectives, rather, are best served.

And despite this attitude, I think we also have to look at it in the framework of Mr. Justice Black in his concurring opinion in Plymouth Sedan where he also states that we must be mindful on the principle that constitutional provisions for the security of personal property should be also liberally construed.

So although we have a situation where I can understand the Court's feeling that we have a remedial situation with the judicially created exclusionary rule, but on the other hand, we must take into account the fact that we do have a Fourth Amendment situation which is fundamental, and much recognition should be given to it as well.

And under those circumstances, a weigh... even with the balancing of the costs and benefits, as I have outlined in my brief, I think the objective of deterring Fourth Amendment violations requires the result of the Rhode Island Supreme Court to be affirmed.

And I say this and would point out that the Rhode Island Supreme Court also recognized, a Chief Justice Burger pointed out to me, that under the 21st Amendment there is a strong police power permitting very vigorous regulation of liquor matters.

That is working, and it has worked despite the fact of the Fourth Amendment and the exclusionary rule, and it has worked because of the framework of decisional law that has resulted from that 21st Amendment.

The Rhode Island Supreme Court noted that because that point was brought up by my adversary now in that case, and they recognized and pointed out, the Rhode Island Supreme Court, that there were other measures and alternatives which adequately served that purpose, and more importantly, the interest in doing that, regulating the liquor control, was not as significant as giving recognition to Fourth Amendment rights.

And I believe that the Rhode Island Supreme Court properly applied the rule, properly entered a weighing and balancing situation as to both cost and benefit, and rendered a proper decision which I request be affirmed.